Citation Nr: 1735331 Decision Date: 08/25/17 Archive Date: 09/06/17 DOCKET NO. 12-34 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an initial compensable rating for hypertension. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1964 to April 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. This claim was remanded by the Board in March 2015 for additional development. FINDINGS OF FACT 1. The Veteran does not have diastolic pressure that is predominately 100 or more or systolic pressure at predominately at 160 or more. 2. The Veteran's service-connected disabilities preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for the Veteran's hypertension have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.385, 4.1-4.14, 4.56, 4.118, Diagnostic Code 7101 (2016). 2. The criteria for TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete VA application, VA must notify the claimant of any information, medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Here, the Veteran was granted service connection for his hypertension by the Board in a July 2009 decision. The Veteran's hypertension was rated as noncompensable, and the Veteran appealed this rating. The Board acknowledges the Veteran was not provided a formal letter explaining the evidence necessary to establish a higher rating. However, in the October 2012 Statement of the Case (SOC) the applicable law for increased rating claims and the diagnostic code for hypertension was provided to the Veteran. The Board finds the October 2012 SOC adequately informed the Veteran of the evidence required to substantiate an increased rating claim; thus, VA has complied with its duty to assist. Additionally, VA has a duty to assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). The evidence of record includes the Veteran's Service Treatment Records (STRs), his private medical records, his VA treatment records, and his VA examinations. The Board remanded the case in March 2015 for the VA to obtain any private treatment records the Veteran may have and all VA treatment records from June 2012. VA has a duty to substantially comply with the Board remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes VA sent a letter in June 2015 asking the Veteran to provide the names of all private health centers where he received treatment for his hypertension. Further, the Veteran's claims file includes his VA treatment records from June 2012 forward. Thus, the Board finds there has been substantial compliance with the remand directives. Moreover, the Veteran has not referred to any additional, unobtained, relevant, available evidence. Consequently, all relevant, identified, and available evidence has been obtained. The duty to assist also includes providing an examination when the record indicates a claim may have merit but there is insufficient evidence to decide the matter. 38 U.S.C.A. § 5103A (West 2014); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore, once VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In 2015, the Board remanded the case for a VA examination. In July 2015, the Veteran received VA examinations for his hypertension, in accordance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board finds the July 2015 VA examination was adequate as the examiner reviewed the Veteran's treatment records, examined the Veteran, and provided detailed findings. Accordingly, the Board's duty to assist has been fulfilled. Increased Rating for Hypertension Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.20 (2016). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in August 2003. Fenderson v. West, 12 Vet. App. 119 (1999). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of evidence in light of the entirety of the record. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2016). Hypertension is rated under Diagnostic Code 7101. 38 C.F.R. § 4.104. Under Diagnostic Code 7101, a 10 percent evaluation is warranted for diastolic pressure predominantly 100 or more; systolic pressure predominantly 160 or more; or, as the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent evaluation is warranted for diastolic pressure predominantly 110 or more; or, systolic pressure predominantly 200 or more. A 40 percent evaluation is warranted for diastolic pressure predominantly 120 or more. A 60 percent evaluation is warranted for diastolic pressure predominantly 130 or more. For VA compensation purposes, the term hypertension means that diastolic blood pressure is predominantly 90 or greater, and isolated systolic hypertension means that systolic blood pressure is predominantly 160 or greater with diastolic blood pressure less than 90. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). The Board considers the complete history of the Veteran's treatment records and VA examinations. The evidence of record includes blood pressure readings from 2003 to 2015. The Veteran's blood pressure readings fluctuate over time, but at no time do the Veteran's readings show consistent diastolic pressure at 100 or more. Further, the Veteran's blood pressure readings do not show consistent systolic pressure at 160 or more. The Board acknowledges that the Veteran submitted evidence showing blood pressure readings from July 2015 for a two-week period and on some days the Veteran's systolic pressure was higher than 160. However, the Diagnostic Code requires that the readings must be confirmed by taking two or more readings on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). The evidence from the Veteran provides only singular readings each day. Furthermore, the Board acknowledges that the Veteran is on medication to control his hypertension, a fact which is considered in the Diagnostic Code. Consequently, to qualify for a compensable rating the Veteran must show that he has a history of diastolic pressure predominately 100 or more in combination with controlling his hypertension on medication. As noted by the VA examiner in 2012, the Veteran does not have a history of diastolic pressure over 100. Further, the VA examiner in July 2015 noted that the Veteran's average blood pressure reading was 134/77. Further, the examiner noted that there was no evidence of cardiomegaly on either x-ray or EKG. Thus, the evidence of record is against the Veteran's claim and the reasonable doubt standard is not applicable. See 38 C.F.R. § 4.3 (2016). Therefore, the Board concludes a compensable rating is not warranted. TDIU Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). When determining if a single disability meets the criteria, the regulations allows for these five scenarios: 1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). The Veteran is service connected for diabetes mellitus rated as 20 percent disabling from August 24, 2003. The Veteran is service connected for peripheral neuropathy in his right hand, right lower extremity, and left lower extremity each at 20 percent from December 10, 2012. He is service connected for peripheral neuropathy in his left hand rated as 30 percent disabling from August 23, 2016. The Veteran is also service-connected for hypertension and erectile dysfunction; both disabilities are rated as noncompensable. The Veteran's combined rating is 80 percent and the Veteran's disabilities due to his diabetes combine for a single-disability rating of more than 40 percent. Therefore, the Veteran meets the criteria for TDIU. The central inquiry is "whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board will not consider his or her age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The Veteran underwent a VA examination in October 2016. He stated that the pain and weakness in his feet and legs limited his ability to walk. Specifically, the Veteran stated he could walk further than a block without pain. The pain also prevented the Veteran from sitting for long periods or standing longer than 20 minutes. The examiner noted the Veteran worked as a commercial truck driver but had to retire because of his neuropathy. However, the examiner ultimately opined the Veteran was not unemployable because his disabilities did not prevent him from working a sedentary job with fewer hours. In determining whether TDIU is applicable the Board also considers the Veteran's individual background, including his education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276 (2015). The Board notes the Veteran has 2 years of post-secondary education and has worked as a truck driver since 2007. Considering the Veteran's long history as a truck driver, the Board finds that his disabilities render him unemployable as he is no longer able to work as a commercial truck driver. While the October 2016 examiner opined the Veteran could work a sedentary job, the Veteran stated that his neuropathy prevented him from sitting for long periods of time. Thus, it is unlikely the Veteran would be able to work a sedentary job, even if his skills as a commercial truck driver could be transferred to a sedentary position. For these reasons, a TDIU is granted. ORDER An initial compensable rating for hypertension is denied. A TDIU is granted. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs